Friday, February 15, 2019

Cert before judgment

SCOTUS granted cert before judgment under § 1254(1) in Dept. of Commerce v. New York, the challenge to the inclusion of a citizenship question on the census format. The Court added it to the April sitting. This is the first time it has done this with a stand-alone case since Dames & Moore in 1982. Other high-profile examples were Youngstown Steel and Nixon.

Presumably the Court sees the case as uniquely time-sensitive because DOC must complete the census form by the end of spring/beginning of summer.

Posted by Howard Wasserman on February 15, 2019 at 02:46 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (1)

Wednesday, February 13, 2019

5th Annual Civil Procedure Workshop, Oct. 25-29, 2019

The Civil Procedure Workshop gives both emerging and established civil procedure scholars an opportunity to gather with colleagues and present their work to an expert audience. Scholars will present their papers in small panel sessions. A senior scholar will moderate each panel and lead the commentary. In addition to paper presentations, we intend to engage members of the judiciary and federal civil rulemaking bodies in discussions about current developments in procedure . Our ongoing goal is for the CPW to strengthen the study of procedure as an academic discipline, and to deepen ties among the academy, rulemakers, and the judiciary.

Confirmed participants for 2019 include Kevin Clermont, Mechele Dickerson, J. Maria Glover, Tara Leigh Grove, Olatunde Johnson, Linda Mullenix, James Pfander, Charlie Silver, Shirin Sinnar, Steve Vladeck, and Patrick Woolley. We welcome all civil procedure scholars to attend. Those wishing to present a paper for discussion should submit a two-page abstract by March 15, 2019.

While we welcome papers from both emerging and senior scholars, preference may be given to those who have been teaching for less than ten years . We will select papers to be presented by April 22, 2019. Please send all submissions or related questions to Bob Bone.

The CPW will provide meals for registrants. Participants must cover travel and lodging costs. We will provide information about reasonably priced hotels as the date approaches. Feel free to contact us with questions.

Bob Bone (UT Austin), [email protected]
Dave Marcus (UCLA), [email protected] .edu
Liz Porter (UW), [email protected]
Brooke Coleman (Seattle U), [email protected]

Posted by Howard Wasserman on February 13, 2019 at 03:01 PM in Civil Procedure | Permalink | Comments (0)

Right result, mess of an analysis

Erie can be complicated. But a lot of that complication comes from courts conflating different strands of the analysis. Pappas v. Philip Morris from the Second Circuit illustrates that problem.

At issue is whether an executrix suing on behalf of an estate can proceed pro se; Connecticut law says no, while Second Circuit precedent interpreting 28 U.S.C. § 1654 says yes. The court then went into several disconnected aspects of Erie--whether rules of practice are procedural or substantive, § 1654 and precedent, local rules and inherent power to regulate practice before a district, and the twin aims of Erie.

But this should have been a pretty easy case and I am not sure why the court took such a complicated route.

• At times the court says the issue of whether a representative plaintiff can proceed pro se is controlled by § 1654 and judicial interpretations of that. If so, the only question should have been whether § 1654 was valid under the Necessary and Proper Clause and the power to constitute the federal courts. Under the RDA, state law controls except where "Acts of Congress otherwise require or provide." Section 1654 is an Act of Congress that provides (as interpreted) that a representative can proceed pro se in certain circumstances; if valid (which it is), it controls. There was no need to ask whether it was procedural or substantive, to mention the twin aims of Erie, or to ask whether the statute "encroaches" on federal law, except to the extent that encroachment renders § 1654 constitutionally invalid. When the conflicting federal rule comes from a congressional enactment, the rule controls so long as Congress had the power to enact the rule. This is the separation-of-powers gloss on the constitutional issues in Erie--the issue is not that state law had to control, it was that the source of superseding federal law had to be Congress.

• At other times the court says the issue is a matter of local rules and inherent power. If so, the court needed to do a full Erie analysis--asking about forum shopping and inequitable administration of laws. But the sum of this analysis was the statement that there was "no reason to believe" it would lead to forum shopping or inequitable administration. If this is a true conflict between state law and federal common law, a lot more is required.

As I said, the right result. But a convoluted way to get there.

Posted by Howard Wasserman on February 13, 2019 at 10:16 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (1)

Tuesday, February 12, 2019

JOTWELL: Tidmarsh on Hodges & Voet on collective redress

The new Courts Law essay comes form Jay Tidmarsh (Notre Dame), reviewing Christopher Hodges & Stefaan Vogt, Delivering Collective Redress: New Technologies (Hart 2018), which explores the European search for alternative approaches to collective litigation and redress.

Posted by Howard Wasserman on February 12, 2019 at 09:53 AM in Article Spotlight, Books, Civil Procedure | Permalink | Comments (1)

Saturday, February 09, 2019

11th Junior Faculty Federal Courts Workshop

The University of Arkansas School of Law will host the Eleventh Annual Junior Faculty Federal Courts Workshop on September 6-7, 2019. The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress.

The workshop is open to untenured and recently tenured academics who teach and write in the areas of federal courts, civil rights litigation, civil procedure, and other related topics. The program is also open to scholars who wish to attend, read, and comment on papers but not present.  There is no registration fee.

The conference will begin on the morning of Friday, September 6, and conclude by lunchtime on Saturday, September 7. Each panel will consist of three to four junior scholars, with a senior scholar commenting on the papers and leading a group discussion.

The workshop will take place on the University of Arkansas’s flagship campus in Fayetteville. The Law School will provide lunches and dinners for those attending the workshop, but attendees must cover their own travel and lodging costs. Those wishing to present a paper must submit an abstract to [email protected] by March 29, 2019. Papers will be selected by a committee of past participants, and presenters will be notified by the end of May.

Posted by Howard Wasserman on February 9, 2019 at 01:21 PM in Civil Procedure, Teaching Law | Permalink | Comments (0)

Thursday, February 07, 2019

More personal jurisdiction on the internet

A few weeks ago, I mentioned the threatened defamation lawsuits by the students at Covington Catholic against journalists who tweeted about the incident. I wondered whether there would be personal jurisdiction in Kentucky--whether there was enough Kentuckiness (beyond the plaintiffs being from there) to satisfy Walden/Calder.

An analytical hint (from within the Sixth Circuit) comes from the Eastern District of Michigan in an action brought by two men wrongly reported as the driver and owner of the car that struck and killed Heather Heyer in Charlottesville in 2017; defendants were a news organization and bunch of individuals who tweeted or circulated the news reports. Three individuals (one in California, one in Wisconsin, and one in Indiana) challenged personal jurisdiction. The court explored cases (including Clemens v. McNamee) to establish the principle that the defamatory statements must involve the forum state in some way other than being about someone from that forum.

The California defendant was subject to jurisdiction because she had doxed the plaintiffs, republishing information about their physical home in Michigan. This allowed the inference that she was attempting to cause action in Michigan or to catch the attention of people in Michigan.* By contrast, the two defendants who had merely retweeted or circulated a news article identifying the plaintiffs as the driver did not satisfy the effects test, because there was "nothing 'Michigan'" about circulating the article identifying a Michigander as the driver.

[*] The "traditional notions" prong carried some heft as to the California defendant, a disabled elderly woman living on social security. The court recognized the hardship, but found the state interest to prevail in the balance.

So where does this analysis leave the potential defendants as to Covington Catholic? Were the tweets identifying the students as from Kentucky, criticizing and calling on the Kentucky-based school to take action "sufficiently 'Kentucky'"? That will be the question.

Posted by Howard Wasserman on February 7, 2019 at 07:46 AM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Wednesday, January 23, 2019

Your new civ pro exam question

A lawyer in Kentucky is threatening to sue a whole lot of people for defamation for commenting on the videos of the Covington Catholic students at the Lincoln Memorial. He was excited by the fact that, because the kids were initially not public figures, he only has to prove negligence rather than actual malice. I believe he is going to have a hard time showing falsity or negligence, since much of the commentary was based on the speaker's interpretation of multiple videos from multiple angles that painted an at-least ambiguous picture. There also is a group-libel angle--one group of potential plaintiffs are Covington Catholic alumni, who claim they have been defamed by the negative comments about their school.

For now, I have a different question: Is there personal jurisdiction in Kentucky (where I assume he plans to sue) over reporters and others on Twitter who saw and commented on the video? Under an effects test, the statements must be directed at Kentucky. That the plaintiffs are from Kentucky is not enough, standing alone. The events being commented on occurred in Washington. The statements were sent to the world, not specifically (or primarily) to Kentucky. Many of the potential defendants have never set foot in Kentucky, certainly not as part of these events.

The counter might be that the students' "Kentuckiness" was part of the public commentary about them--everyone quickly knew and talked about where they were from and where they went to school and the connection of their homes to their presence in DC. And criticism of the school and Covington was part of the criticism of the students. Perhaps that is sufficient to establish purposeful direction at Kentucky.

Posted by Howard Wasserman on January 23, 2019 at 01:08 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Tuesday, January 22, 2019

The legal fiction of "clearly established"

Orin Kerr flags this Third Circuit decision holding that a Fourth Amendment right was not clearly established where a binding circuit decision was handed down two days before the events at issue. That was too short a time for the government to read and understand the case, develop new policies to reflect that case, and communicate those policies to the officer. Kerr ponders some interesting questions arising from the case about determining how long it takes for a right to become clearly established and what the government and/or the officer must do to learn the law.

It seems to me this exposes two problems in qualified-immunity law. One is the essentially fictitious nature of tying qualified immunity to factually similar case law--law-enforcement officers do not read or follow case law and they do not perform their daily functions thinking about how the instant situation compares or contrasts with a situation in other cases. Talking about "the law of which the officer would be aware" in terms of case law does not reflect how law enforcement operates.

Second is how the Third Circuit's focus on policymakers establishing policy to reflect the new decision and communicating that policy to the officers. This appears to collapse into municipal-liability analysis (in a case involving a municipality, as opposed to the federal or state governments, such as this one)--government policy and government training of officers is necessary to clearly establish, both hallmarks of municipal liability. So does this suggest that a right is clearly established only if a municipality would be liable for having policies contrary to law or for failing to train on those policies?

Posted by Howard Wasserman on January 22, 2019 at 11:18 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (6)

Monday, January 21, 2019

SCOTUS does Civ Pro, confusedly

I just listened to last week's argument in Home Depot v. Jackson, which showed how confused the Justices get about Civ Pro. The issue is whether a third-party claim brought under CAFA can be removed by the third-party defendant. In the case, Citibank brought a debt-collection against against Jackson in state court; Jackson filed a counterclaim and impleaded Home Depot on an unfair trade practices class action. Home Depot wanted to remove the third-party claim under CAFA, which allows for removal of class actions with an amount-in-controversy over $ 5m on minimal diversity. The Court has held that a counterclaim defendant (otherwise known as the original plaintiff) cannot remove; the question is whether that is true of a third-party defendant.

Some thoughts:

• There was a lot of confusion about the distinction among counterclaims, cross claims, and third-party claims, even among the advocates. That confusion affected the question of whether Home Depot is a "defendant" or a "third-party defendant" and whether there is a difference between those two things. Does "any defendant" in § 1453(b) include third-party defendants as well as original defendants? Or, to put it in dueling metaphors, is a third-party defendant a black rabbit compared with all other defendant/rabbits? Or is a defendant a rabbit and a third-party defendant a weasel.

• Jackson's lawyer made what I think should be the key point, although I am not sure the Justices saw it this way (Justice Breyer hinted at the point in his own unknowing way). If Home Depot can remove here, then any third-party defendant can remove if he is diverse from the defendant/third-party plaintiff. (He gave an example of a generic tort action against a corporation, with the corporation then impleading its diverse insurer, which then removes). I do not see a relevant difference between CAFA removal of a class action and § 1441 removal of that, or any other, individual action. I did not hear Home Depot's counsel or any Justice suggest one. So if a third-party defendant is a defendant, then all third-party claims must be removable, not only those removable under CAFA.

• I kept thinking that it also would allow removal of a federal claim brought as a third-party complaint. There was some discussion about that being limited by the Well Pleaded Complaint rule, which applies to § 1331 but not § 1332. But I always have understood the WPC as implicitly applying to § 1332, as well, by placing the focus on the identities of the parties and claims named in the WPC--we determine diversity by looking at the parties named and the amount sought in the complaint. The point being that unless Congress says otherwise (as in America Invents), the "civil action" removable under § 1441 is the one established in the complaint and removal cannot be based on additional claims filed by different parties against anyone.

• Justice Alito came across as disrespectful of advocates who urge positions he disagrees with and law reviews. Consider this exchange

JUSTICE ALITO: . . . somebody came up with this idea of using this sort of proceeding as a way of getting around CAFA. And there's a law review article that actually says, after CAFA, well, look, we found a way to get around CAFA so thatwe can keep these things in state court. Is that not correct?

PAUL BLAND:  . . .There was a law review article by an advocate. It's not really a law review article and a peer-reviewed article. I think it's more like a blog. But, anyhow, a guy writes an article saying -

* * *

JUSTICE ALITO: Since when are law review articles peer reviewed?

MR. BLAND: You know, that's a good point.

JUSTICE ALITO: Who are they reviewed by?

(Laughter.)

MR. BLAND:

You're totally right. I-- I'm so sorry. I -- I should never have said that, you're right.

JUSTICE ALITO: They should be -- maybe they should be peer reviewed.

MR. BLAND: Law review articles are student reviewed, they're not peer reviewed. I -- I -- I withdraw. That was --

JUSTICE BREYER: I'm fine on law review articles.

The law review stuff is a funny exchange. But the underlying premise is that Jackson's argument to keep the case in state court is somehow illegitimate because it originated on the pages of law reviews. This is troubling for a couple of reasons. Justice Alito does not express similar concerns with the creative, scholar-driven theories urged (and continuing to be urged) against the Affordable Care Act. If you believe Chief Justice Roberts, the problem with legal scholarship is that it is not sufficiently helpful to lawyers and courts. Now, an idea urged in court is somehow questionable because it was presented in scholarship as a way to convince lawyers and courts on an issue. This is not the first time that Justice Alito has cast aspersions on advocates urging positions towards a legal goal--he similarly questions death-penalty abolitionists for their advocacy.

Posted by Howard Wasserman on January 21, 2019 at 01:26 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Wednesday, January 16, 2019

JOTWELL: Bookman on Sinnar on procedural experimentation and national security

The new Courts Law essay comes from Pamela Bookman (Temple), reviewing Shirin Sinnar, Procedural Experimentation and National Security in Courts, 106 Cal. L. Rev. 991 (2018), which explores ways to handle national-security concerns while allowing for transparency and litigation on the merits.

Posted by Howard Wasserman on January 16, 2019 at 12:33 PM in Article Spotlight, Civil Procedure | Permalink | Comments (1)

Tuesday, January 15, 2019

Indivisibility, incidentality, and universality

A judge in the Southern District of New York universally enjoined Commerce Secretary Wilbur Ross from adding to the census a question about citizenship. The court addressed the government's attempts to squeeze the case into the debate over universal injunctions and to limit the injunction only to the plaintiffs, but found it an "odd fit." The court explained that "these cases do not involve the case-by-case enforcement of a particular policy or statute. Instead, it concerns a single decision about a single questionnaire, to be used on a single census throughout the nation." The alternative for Ross would be to use two census forms (one as to the people covered by the injunction, one as to everyone else), but that might violate both federal statutes and the Constitution and cause the harms (in terms of funding and representation) that the state plaintiffs complain about.

Without saying so, the court is describing a situation of an indivisible right and indivisible remedy. The only remedy protecting the named plaintiffs necessarily protects non-plaintiffs, because the proper census form is issued to everyone, plaintiff and non-plaintiff. This case is analogous to a gerrymander challenge to a congressional district--the remedy of redrawing the district cannot be limited to the plaintiff, but must protect everyone within the district. Or a challenge to a religious display--the remedy of removing the display cannot be limited to the plaintiff, but must protected everyone who also would come in contact with the display.

But such injunctions should not be understood as universal, in the sense of protecting non-parties. They are better understood as protecting the plaintiffs while incidentally benefiting non-parties. The difference may seem semantic, but it is procedurally significant. A person protected by an injunction can seek to enforce the injunction through a motion to enforce and a motion to hold the government in contempt. But that power should be limited to the parties who control the litigation. My framing does not change much about the injunction in this case--Ross is prohibited from issuing a census form containing a citizenship question. What changes is if Ross tried to make the two-form move: Only the parties could move to stop that as violating the injunction, not the non-parties incidentally protected.

Posted by Howard Wasserman on January 15, 2019 at 12:26 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Universal in name only

Sam Bray analyzes the recent split decisions over universal preliminary injunctions in challenges to the new ACA contraception rules--the Northern District of California limited the injunction to the plaintiff states, while the Eastern District of Pennsylvania made the injunction universal (labeling it nationwide, over course). Sam argues that the latter court offers the best justification for universality, with a particular focus on how the states cannot obtain complete relief from a limited injunction. For example, the court offered the problem of a NJ resident who works (and gets her insurance) from an entity in another state where the new regs apply and where the resident cannot get contraceptive coverage, causing her to turn to New Jersey to pay for it. Like Sam, I am not convinced by the analysis, although I agree it is one of the first courts to defend universality without defaulting to vague principles that make universality the norm.

I was struck by one thing at the end of the opinion. The court identifies the criticism that universal injunctions foreclose adjudication by a number of courts, but insists that is not a problem here, as shown by the contemporaneous N.D. California decision. And that has been true of much of the major constitutional litigation of recent years--multiple courts are adjudicating multiple challenges brought by multiple parties. We are getting percolation.

But that suggests that no court is serious in labeling its injunction universal. No court intends to enforce it as universal by holding the government in contempt, no court recognizes the purported universality of another court's injunction as a basis to stay its hand because its decision is unnecessary, and the government does not appear to treat any one injunction as the universal bar to enforcement. In other words, the government will not enforce the contraception regs in California because of the N.D. Cal particularized injunction, not the E.D. Pa. universal injunction. The latter is universal in name, but not in effect.

If I am right about that, the question becomes why bother. Why are courts going out on a controversial legal ledge to assert a controversial power with no intent to actually exercise it?

Posted by Howard Wasserman on January 15, 2019 at 11:46 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thursday, January 10, 2019

"Thank goodness I have a law license" so I should know about jurisdiction

Above the Law reports on a lawsuit filed in Texas state court by a Texas attorney against Ticketmaster, after a technical glitch caused him to purchase Hamilton tickets for the wrong day. The Plaintiff, represented by his law firm, claims fraudulent inducement, breach of contract, and Sherman Act violation (the latter based on the fact that the only recourse was to sell the tickets back through Ticketmaster at inflated prices and for an administrative fee). The plaintiff is quoted as saying "thank goodness I have a law license."

But am I wrong that there is a jurisdictional problem here that he ignores or does not see, despite having a law license? There is exclusive jurisdiction over antitrust claims. I am not sure it is should be exclusive, since § 1337 gives district courts jurisdiction but does not make it exclusive. But a 1922 antitrust decision, accepted in Marrese v. Orthopedic Surgeons in 1985, makes the point clear, as does a 1976 case from the Fifth Circuit.

In any event, there is a separate removability question. Ticketmaster is an LLC and unless one of its members happens to live in Texas (doubtful, as it seems everyone associated with the organization is in California), it is not from Texas, creating diversity jurisdiction over the state claims are removable and the case is headed to federal court. (Update: Oops--forgot about amount in controversy--I doubt this case is worth more than $ 75k on the state claims and the complaint does not expressly ask for punitive damages. So maybe the case will remain in state court, just without the antitrust claim.)

Posted by Howard Wasserman on January 10, 2019 at 05:29 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Monday, December 31, 2018

Judge in ACA case still needs to retake Fed Courts

District Judge O'Connor on Sunday paved the way for an appeal of his decision declaring all of ACA constitutionally invalid, issuing a Final Judgment on Count I in accordance with FRCP 54(b) and a separate Order of a Stay and Partial Final Judgment pending appeal. The latter document gives reasons for certifying partial final judgment and for granting the stay. As to the latter, the court goes to great lengths to explain why the intervenor-defendant states are unlikely to succeed on the merits on appeal, reiterating its standing, merits, and severability analyses from the original order, but concluding that the equities favor a stay.

As has been the case all along, Judge O'Connor continues to make jurisdictional errors.

Standing

Jonathan Adler has a good takedown of the expanded standing analysis, in which Judge O'Connor continues to find injury from the existence of a law absent any risk that the law could be enforced against the plaintiffs. The court relies on the correct principle that a person need not violate a law to have standing, but ignores that those cases required the plaintiff to show at least a genuine threat that the law would be enforced against him and that some penalty would result. He insists that no case requires an assessment of whether the plaintiff is injured by "disregarding" the law. It is true that courts do not put it in those terms, but that is implicit in the requirement of a threat of enforcement, which is triggered by someone disregarding the law.

O'Connor relies on Steffel v. Thompson, in which standing derived from Steffel's stated intention to resume handbilling and the express threat of the police to arrest him for trespassing (as they had his friend) if he did so. He also relies on Clements v. Fashing, in which the plaintiffs (challenging a state law that deemed candidacy for one office as resignation of an existing office) did not announce their candidacy for office, because that announcement would be deemed a resignation. That is, the plaintiffs in both cases would be subject to some mechanism for enforcing the law and it was that enforcement mechanism that caused the injury. In no case did the court find injury based on a statutory obligation that provided for no means of enforcement and no consequences.

O'Connor also tried to get cute, noting that "Chief Justice Marshall never asked whether William Marbury would be injured if he ignored the law and began serving as a justice of the peace without an official commission from James Madison." But that is because Marshall recognized that had Marbury done so, court personnel would have ignored him, not given him a courtroom in which to work, not carried out his orders, and perhaps asked the the Marshals physically remove him from the premises. All of which reflects the enforcement of the challenged law.

Two additional thoughts on standing. First, in a prior post, Adler analogizes the mandate-with-no-penalty to 4 U.S.C. § 8, which provides that "no disrespect should be shown to the flag of the United States of America" and enumerates what civilians and civilian groups cannot do with the flag. Obviously, the law is unenforceable under Texas v. Johnson. But we never get there, because the U.S. Code provides no mechanism for enforcement and imposes no penalties for failing to follow those rules. No court would accord standing to a plaintiff who argues "I want to use the flag as a covering for a ceiling (prohibited by § 4(f)), but I am refraining from doing so because I do not want to break the law," because the plaintiff would suffer no enforcement and sanction for using the flag to cover the ceiling.

Second, standing was established in part because the ban, even if not enforced to keep these plaintiffs out of the United States, sent a message of religious exclusion and made them feel less than full members of the community because of their religion. Some critics of those decisions derided this as "snowflake standing"--the plaintiffs feel bad and are hurt in their delicate snowflake sensibilities. But that does not sound much different than what the plaintiffs are arguing here-they will feel bad (their delicate sensibilities undone) if they have to act contrary to what the written law, otherwise unenforceable, requires them to do.

Appellate Review

The point of these orders was to pave the way for immediate review of the declaratory judgment. All parties had asked for certification of interlocutory review under § 1292(b), but Judge O'Connor instead certified a final judgment on one-but-less-than-all claims. But on the Con Law listserv, Marty Lederman identified a problem--it is not clear that the court finally resolved even one claim. The plaintiffs asked for a declaration that the mandate is invalid and a permanent injunction prohibiting implementation or enforcement of ACA; the court granted the former, but never addressed or reached a conclusion as to the latter remedy. A judgment, even on one claim, may not be final if remedial issues remain on that count.

Another commenter on the listserv suggested two possible outs. One would be to deem the certification of finality as the denial of the injunction. A second would be to treat the improper Rule 54(b) certification as a § 1292(b) certification and proceed that way. Otherwise, the court would have to dismiss the appeal for lack of jurisdiction and send the case back to the district court to enter the injunction (thereby creating appellate jurisdiction under § 1292(a)(1)) or to certify under § 1292(b).

One question is why Judge O'Connor proceeded this way, since the parties all requested a § 1292(b) certification and not a 54(b) certification. One thought is that he did not want to certify that there could be "substantial ground for difference of opinion" as to constitutional validity or severability. O'Connor has gone to great rhetorical lengths in all of his opinions and orders to make this seem like an obvious, not-at-all-close case with one obvious result, in which defendants can prevail only by demanding that courts acts in an invalid, unlawful, illegitimate, impermissible activist way. Section 1292(b) would require Judge O'Connor to declare that it might be possible for a court, acting in a legitimate way, to reach a different conclusion. That he does not want to certify.

Posted by Howard Wasserman on December 31, 2018 at 04:28 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Saturday, December 29, 2018

A tale of two appeals

The Ninth Circuit accepted the district court's § 1292(b) certification in the climate-change litigation, paving the way for review of the denial of motions to dismiss for failure to state a claim, lack of standing, and other bases. This after a series of failed attempts by the government to get the Ninth Circuit or SCOTUS to grant mandamus, stay the case, or provide other relief. Dissenting, Judge Friedland suggested that the district court did not genuinely believe the requirements of § 1292(b) were met and did not "so state," especially as to whether immediate review would "materially advance the ultimate termination of the litigation," and the the district court was strong-armed by the government's repeated attempts to bypass normal litigation procedures.

The thing that has bothered me all along is I do not see how the first prong of § 1292(b) is satisfied--that the interlocutory "order involves a controlling question of law," which should be limited to purely legal questions such as the meaning of a law, not to questions of application of known law to fact. The court found that plaintiffs have standing and that the plaintiffs stated a claim, accepting as sufficiently pleaded a creative application of the state-created danger theory of substantive due process. Standing is not purely legal--the requirements of standing are well-known, the issue here is whether they were satisfied. Perhaps the allowance of  the state-created danger theory would qualify. But then what about the non-legal issues? dDoes everything else (such as standing) go with it on pendent appellate jurisdiction? Is the standing question "inextricably intertwined" with the constitutional question over which the court of appeals has jurisdiction?

Meanwhile, all sides are urging the district court in the ACA litigation to certify its decision under § 1292(b). This reads as a more appropriate case for interloctuory review, as the court decided an obvious question of law as to the constitutional validity of the individual mandate and the severability of the rest of the statute. And then does the standing decision (which should be the appropriate basis for getting rid of this case) similarly go along for the ride on pendent jurisdiction?

Posted by Howard Wasserman on December 29, 2018 at 08:34 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Friday, December 28, 2018

Tenth Circuit offers an interesting mix of Younger, Rooker, and jurisdictionality

An area of seeming confusion for courts is the collision between Younger abstention and lack of jurisdiction under Rooker-Feldman. The doctrines are similar, as they both limit the power of federal courts to interfere with state adjudicative proceedings. In theory, the line is sharp--RF prohibits actions that formally or functionally ask the federal court to review the state decision, while Younger prohibits federal courts from halting ongoing state proceedings. In practice, they seem to run into one another, especially when courts use Younger as the basis for dismissing challenges to non-final state orders.

This Tenth Circuit case offers a different side of the collision.The federal plaintiff, the defending party in a state attorney-disciplinary proceeding, argued in federal court that the state bar lacked jurisdiction to discipline him, since he is not barred in that state (he maintains an office in the state, but practices only in federal court and federal immigration proceedings there). The district court abstained under Younger. But by the time the federal case reached the Tenth Circuit, the Colorado Supreme Court had suspended the plaintiff, ending the disciplinary proceeding. So the Tenth Circuit reversed the Younger dismissal, because the end of the state proceedings means the first prong of the Younger analysis (ongoing proceeding) is not satisfied, so the plaintiff can bring an action for a D/J action that the state tribunal lacked jurisdiction over him (because he is not barred in Colorado). The Tenth Circuit explained:

Consider our options. On the one hand, "if we were to reverse the dismissal," Plaintiff could (obviously enough) renew his already-filed claim before the district court. Id . On the other hand, "if we were to affirm the dismissal," Plaintiff could immediately refile in any event "because the dismissal was without prejudice." Id . "In these circumstances, we vacate dismissal . . . and remand these claims to the district court so that it can reconsider them without the need to abstain now that the state proceedings have ended." Id

This seems wrong on several levels.

First, the point of Younger is to eliminate federal interference with state proceedings; that interference remains after the state proceeding ends, if the federal action seeks to undermine or undo the results of that state proceeding. This is the point of Wooley v. Maynard (the "Live Free or Die" license plate case). Maynard had been convicted of traffic offenses three times for covering the motto on his plate; all three proceedings were over. The Court held the federal suit not Younger-barred only because he did not challenge or affect the results or consequences of those prior convictions and sentences; he sought only to prevent future enforcement of the law against him. The implication is that had Maynard sought to undo the past convictions, Younger would have barred the action. This federal action seeks to do what Maynard did not--invalidate the result of the state proceeding; that seems  inconsistent with "Our Federalism."

Second, even if Younger does not bar the federal action, Rooker-Feldman should. The plaintiff challenges the order of a state court suspending him from the practice of law and a federal judgment in his favor would declare that order as erroneous. In fact, attorney discipline is one of the most common situations for RF. And there is no "state court lacked jurisdiction" exception to RF.* The Tenth Circuit may have wanted to punt that issue to the district court. But this action should not go forward.

[*] In any event, I would argue that the plaintiff's argument as to the state proceeding is not that the state courts lacked jurisdiction, but that state law (attorney regs) does not apply to him because he is not barred in Colorado. That is a merits challenge to the reach of state law, not a jurisdictional challenge to the power of the court.

Posted by Howard Wasserman on December 28, 2018 at 01:30 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Thursday, December 20, 2018

JOTWELL: Campos on the Bolch Institute on class actions

The new Courts Law essay comes from Sergio Campos (Miami), reviewing  the Bolch Institute at Duke University's guide to best practices in class actions.

Posted by Howard Wasserman on December 20, 2018 at 08:55 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, December 18, 2018

Standing in the ACA case

Good analysis from Nicholas Bagley (Michigan) about the standing problems for the two individual plaintiffs in the ACA litigation. A few additional thoughts.

• This illustrates how enforcement is the trigger for constitutional litigation, not the existence of a constitutionally defective law. An invalid legal obligation that will not be enforced cannot be the subject of litigation. An invalid legal obligation that will be enforced through a tax penalty of $ 0 is, functionally, a legal obligation that cannot be enforced. It still would be better if we discussed this as a question of merits and not jurisdictional thresholds. If these plaintiffs are not injured because the law cannot be enforced against them in any way, then their substantive constitutional rights are not being violated.

• The plaintiffs' argument that they are injured because they believe following the law is the right thing to do (even when that law is not enforceable) is the flip side of requiring government officials to act lawfully  or refrain from acting unlawfully (e.g., reservists in Congress, non-natural born citizens serving as President). Neither is a basis for standing.

• I have not seen any good argument that the 20+ States have standing. But the court skirted that question through the "one good plaintiff" rule--because someone had standing, the case could proceed without having to consider anyone else's standing. Update: In a companion piece, Bagley doubts that the 20 states have standing, which should mean the court cannot enjoin the Administration from enforcing the law as to him; in Bagley's words, the judge has "tied his own hands."

• Standing and jurisdiction have always been dicey in the ACA litigation; this case represents the latest and weakest effort. I wonder if the Fifth Circuit (or SCOTUS if it gets that far) will use that as the basis to get rid of this case, without having to touch the bizarre merits.

• Bagley describes standing doctrine as "near and dear to the hearts of the conservative legal establishment," so that even conservative judges on the Fifth Circuit (and Roberts and Kavanaugh on SCOTUS) will be unlikely to allow this sort of case to go forward. But the doctrine developed when the conservative legal establishment was trying to stop environmentalists from preserving the Nile crocodile, lawyers from challenging unwarranted surveillance of their foreign clients, and atheists from challenging states' creative ways to give government funds to parochial schools. This is the ideological drift of standing--the doctrine may not be so near and dear when it prevents "two guys from Texas" from taking down the nation's health-care system.

Posted by Howard Wasserman on December 18, 2018 at 04:05 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (10)

Saturday, December 15, 2018

Deepening split on SLAPP laws in federal court

Earlier this month, SCOTUS denied cert in a case out of the Tenth Circuit holding that a state anti-SLAPP law does not apply in federal court under an Erie/Hanna analysis. This week, the Eleventh Circuit weighed in, agreeing that Georgia's law does not apply in an action action CNN.

If you are scoring at home, that is three circuits (1st, 5th, 9th) holding that SLAPP laws apply in federal court and three circuits (DC, 10th, 11th) holding they do not. The Ninth Circuit position is why Stormy Daniels owes Donald Trump $ 300,000 in attorney's fees. But the most recent cases are the three rejecting application.

I was surprised SCOTUS denied cert in the Tenth Circuit case, which had the benefit of using such egregiously incorrect analysis that it begged for correction, even if the Court agreed on the conclusion as to application. Maybe the Court will see the new case as a better vehicle, although because it involves reporting by a major-media outlet, it is less the paradigm SLAPP suit. Regardless, SCOTUS must weigh-in on this at some point.

Update: I have not hit this point in many posts on the subject, but in response to a few email queries: I believe the non-application side has the better argument. Rules 12 and 56 provide mechanisms and standards for weeding-out insufficiently pleaded or supported claims; they "answer the questions in dispute," leaving no room for state law to operate. And both rules are valid because arguably procedural and not abridging, enlarging, or modifying substantive rights. The issue is close and therefore makes a good exam or class hypothetical (I have used it for both).

Posted by Howard Wasserman on December 15, 2018 at 11:43 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Friday, December 14, 2018

9th Circuit taps the brakes (slightly) on universality

The ever-harrowed Ninth Circuit tapped the brakes slightly on district courts issuing universal injunctions. In affirming on the merits an injunction barring enforcement of religious opt-out rules from the contraception mandate in an action brought by five states, the court held that the district court abused its discretion in having the injunction extend beyond the plaintiffs.

The court hit a few important notes. It emphasized that universality is generally disfavored and especially disfavored absent class certification. It highlighted the problems with universal injunctions, including the loss of percolation of issues, the effects on non-plaintiffs, and the risks of forum shopping. And it applied the "complete relief" principle to conclude that a particularized injunction gives states complete relief from the economic harms the opt-out rule would impose on them. That other states may suffer similar harms did not affect the plaintiff states.

The court made clear that universal injunctions are not prohibited, but must be limited to cases in which broad relief is necessary. And it said the issue (as with an earlier case rejecting universality as to sanctuary cities) was a failure to develop the record as to other states, suggesting that building a better record may justify universality. 

But the court grappled with the scope question, a step back from recent hints from that court that universal injunctions were becoming the default, at least in certain cases.

Posted by Howard Wasserman on December 14, 2018 at 07:30 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Wednesday, December 05, 2018

JOTWELL: Malveaux on Trammell on preclusion and nationwide injunctions

The new Courts Law essay comes from Suzette Malveaux (Colorado), reviewing Alan Trammell, Demystifying Nationwide Injunctions, which uses preclusion principles (including arguing that offensive non-mutual preclusion should be available against the government) to support the power to issue broader injunctions.

Alan's paper just came across SSRN yesterday, so I look forward to reading and citing it. My initial thought is that the preclusion analogy (even accepting that Mendoza is wrong) runs into the fact that allowing non-particularized injunctions allows the issue court to police the effect of its own judgment, whereas preclusion ordinarily is the bailiwick of the second court. This is sort of the issue in Nevada v. Dept of Labor and the private attorneys held in contempt for violating the injunction of one court (based on privity principles) by representing a plaintiff in a different lawsuit in a different court . To the extent the injunction binds these private attorneys, it would be through preclusion, which would be for the second court to determine, not the issuing court.

Posted by Howard Wasserman on December 5, 2018 at 09:30 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, December 04, 2018

The limits of civil litigation for exposing truth

The past week has brought to light the story of Jeffrey Epstein, a billionaire hedge-fund manager and alleged sexual predator and child rapist. Epstein pleaded guilty to two state felony counts and served 13 months in unusually forgiving conditions, with a federal investigation and prosecution stopped in its tracks by a broad non-prosecution agreement.*

[*] Full disclosure; The former US Attorney at the center of the controversy, now Secretary of Labor Alex Acosta, was my dean from 2009-17.

The story has exploded now for two reasons. First is the Miami Herald's multi-part in-depth reporting on the case. Second is ongoing civil litigation--one case  by Epstein's victims in federal court claiming the federal settlement violated the Crime Victims Rights Act (which gives crime victims certain notice and other rights) and one case in state court by attorney Bradley Edwards. The latter began as a suit by Epstein against Edwards and his former partner, claiming the latter committed fraud, racketeering, and other crimes in investigating Epstein; Edwards filed a counterclaim for malicious prosecution, which remained alive after Epstein dropped his lawsuit. Trial on the counterclaim was scheduled to begin today, with Edwards expected to call at least seven of Epstein's victims to testify. But the case settled as the jury was being selected, with Epstein paying an undisclosed sum, conceding that he attempted to damage Edwards' professional reputation, and apologizing.

This illustrates the limits of civil litigation for exposing misconduct and revealing truth. The victim stories were tangential to this case, which was really about Epstein's conduct in filing the original lawsuit and Edwards' professional reputation. A settlement offer that resolves that central dispute is irresistible, even if it denies the victims the opportunity to tell their stories (the opportunity they claim they were denied by the actions of the U.S. Attorney's office). One perhaps might criticize Edwards for accepting the settlement rather than giving the victims the chance to testify, since that is what he was promoting as the point of the suit. (Following the settlement, he held a press conference outside the courthouse standing in front of the boxes of evidence he said he planned to present). But I doubt there was any way to avoid that. The judge would have pushed Edwards to accept a settlement that included the defending party admitting wrongdoing (as to Edwards, not as to the women) and apologizing. And had Edwards refused to settle, Epstein might have confessed judgment, rendering a trial on liability, and the women's testimony, unnecessary.

The next step is the federal action by the victims themselves. News reports indicate the plaintiffs hope the court will revoke the federal plea deal and allow the government to prosecute Epstein.

Posted by Howard Wasserman on December 4, 2018 at 09:01 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Backing off universality, at least for sanctuary cities

Judge Ramos Southern District of New York enjoined DOJ's sanctuary-city policies in an action brought by New York, Connecticut, New Jersey, Rhode Island, Washington, Virginia, Massachusetts, and New York City.  (H/T: Ilya Somin, who analyzes the substance of the decision).

Ramos declined to make the injunction universal, although not per se rejecting universality. He emphasized that no sanctuary-city injunctions have remained universal through appellate review and that recent decisions have stayed any non-particular application. The court did extend the injunction to each state's municipal subdivisions, concluding that subdivisions suffer the same injuries described earlier, which necessarily flow to the States by virtue of the subdivisions’ position within the States’ geographic boundaries and political systems, and which are compounded insofar as the States must make and monitor compliance with subdivisions’ subgrants with unlawful conditions." This is the converse of the  Ninth Circuit extending an injunction from party San Francisco to non-party California, because some grant funds sent to California were then distributed to San Francisco. Here, I presume, the state would have to cover any budgetary shortfall caused by the municipality's loss of DOJ funds. Either direction is consistent with the complete-relief requirement. But the court did not accept or apply the broader argument that some states and cities have urged (and that one AG presented during Q&A) that because DOJ has a limited pool of money and the size of the grants varies with the number of applicants, the injunction must be universal so that funds are not disproportionately allocated to non-sanctuary jurisdictions in a way that leaves nothing for sanctuary jurisdictions by the end of litigation.

In any event, this court's approach is a far cry from that of the Ninth Circuit in the DACA litigation, where the court seemed to approach universality as the default.

Posted by Howard Wasserman on December 4, 2018 at 06:46 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Friday, November 30, 2018

Nationwide Injunctions at the National Association of Attorneys General

Yesterday, I appeared with Suzette Malveaux (Colorado) for a panel on nationwide injunctions at the fall meeting of the National Association of Attorneys General. It was a fun discussion. Time ran short, so I did not have the chance to make one point: State AGs stand in a unique position because they are the only class of litigants who may be both beneficiaries and victims of universal injunctions--beneficiaries when they sue the federal government, victims when they defend the validity of their state laws.

I will post a video link if one becomes available.

Posted by Howard Wasserman on November 30, 2018 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Wednesday, November 28, 2018

A funny thing happened on the way to the court of appeals

Here is my SCOTUSBlog recap of Tuesday's argument in Nutraceutical Corp. v. Lambert, considering whether the 14-day period for seeking interlocutory review of a class certification order is subject to equitable tolling.

The most notable part of the argument was the humor--the transcript shows eight breaks for laughter, seven during petitioner's argument. Which makes sense, given stated concerns for Martian invasions. I await Jay Wexler's analysis of the case.

Posted by Howard Wasserman on November 28, 2018 at 11:17 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, November 20, 2018

Universal injunction in asylum-point-of-entry (corrected)

These are coming too quickly to process. The District Court for the Northern District of California issued a universal preliminary injunction (styled a TRO, but done adversarially and scheduled to last more than 14 days) prohibiting the government from enforcing new regulations denying asylum to any persons who present themselves at places other than lawful points of entry.

Unlike the Ninth Circuit in the DACA case, which Sam Bray analyzed, the court did not explain its scope ruling, other than by pointing to three things: facial unconstitutionality; the cert grant in the second travel ban case that allowed the preliminary injunction to stand as to people "similarly situated" to the plaintiffs (before the whole thing became moot); and the relevance of the APA. Sam discusses (with links) the third point and whether the APA really demands universality. The first point relies on Califano v. Yamasaki's "extent of the violation" language, ignoring that Califano involved a nationwide class (and thus a violation of the rights of the class), not the permissible scope of an injunction in an action brought by an individual. The second point continues to get far too much mileage out of loose language in a decision on a stay and granting cert. I have been accused of undervaluing that language, and perhaps I have. But courts are treating it as SCOTUS precedential imprimatur for universal injunctions, which is wait it cannot bear.

Sam argues that courts are close to making universal injunctions the default remedy in cases under APA, immigration cases, and cases with entity plaintiffs. This case supports that position.

Posted by Howard Wasserman on November 20, 2018 at 11:20 AM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

SCOTUSBlog preview: Equitable exceptions to claim-processing rules

I have a SCOTUSBlog preview of Nutraceutical Corp. v. Lambert (to be argued Nov. 27), considering whether the time period for taking a Rule 23(f) interlocutory appeal of a class-certification order is a claim-processing rule subject to equitable exception.

The case was the main topic on this week's First Mondays, live from Duke Law School and featuring Marin Levy and Stephen Sachs, who had fun with the underlying facts  of the suit involving the allegedly fraudulent sale of "Cobra Sexual Energy."

Posted by Howard Wasserman on November 20, 2018 at 10:55 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Monday, November 19, 2018

SCOTUSBlog Preview: First Amendment retaliatory arrests

I have a SCOTUSBlog preview of  Nieves v. Bartlett (to be argued November 26), considering whether a plaintiff seeking damages for a First Amendment retaliatory arrest must show absence of probable cause. The Court last term punted on the question in Lozman v. City of Riviera Beach, because the case involved a retaliatory municipal policy, not only one officer's single retaliatory decision

I describe this as a sneaky-important case, because it involves a collision of two Roberts Court commitments--protecting First Amendment rights and immunizing law enforcement from damages suit and liability. The last part of the petitioner's brief downplays the constitutional importance of talking back to, challenging, criticizing, or insulting police officers performing official functions, insisting it is not speech on matters of public concern that should be protected against retaliatory motives; this eliminates the need for damages liability to vindicate that speech. The brief also argues that police departments will discipline rogue officers who engage in retaliatory arrests, especially in an age of body cameras and citizen video, when departments are more committed to internal accountability. The second point is laughable as an empirical matter. The first is correct on free-speech principle only if the First Amendment does not extend to the rough-and-tumble of ugly public protest or if police officers, the public officials with whom the public has the most direct contact, are above rhetorical challenge and criticism. But both are ideas I could see this Court majority buying, with the second commitment prevailing over the first.

Posted by Howard Wasserman on November 19, 2018 at 03:02 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (4)

Saturday, November 17, 2018

What sovereign immunity has wrought (Update)

Steve writes at SCOTUSBlog about a motion in a pending cert case asking the Court to decide on the validity of Matthew Whitaker's appointment as AG, in order to figure out who should be substituted (for Jeff Sessions) as respondent in the petition. This is happening while lower courts consider the validity of the Whitaker appointment in more substantive contexts. (Gerard Magliocca believes that a Court order compelling briefing will compel Whitaker to withdraw or compel the President to nominate a new AG).

This is another example of how much time is wasted by sovereign immunity, rather than being honest about the fact that the government, and not any individual officer, is the real defendant in a challenge to a constitutionally invalid law.

Update: There is a discussion on the Civ Pro/Fed Courts Prof listserv about why plaintiffs ever sue the officer by name rather than office. FRCP 17(d) provides that "A public officer who sues or is sued in an official capacity may be designated by official title rather than by name, but the court may order that the officer's name be added," so it is permissible to sue the title. And since an EPY action is against the officer in his official capacity, it is against the office/title, so we end up in the same place. This gets me to my original point--if we just sued the office (and thus the U.S.), it would remain more straight-forward.

Posted by Howard Wasserman on November 17, 2018 at 03:15 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Monday, November 05, 2018

JOTWELL: Levy on Re on Marks

The new Courts Law essay comes from Marin Levy (Duke), reviewing Richard Re, Beyond the Marks Rule (Harv. L. Rev., forthcoming), which critiques the Marks Rule and its (ineffective) efforts to create binding precedent absent a majority opinion.

Posted by Howard Wasserman on November 5, 2018 at 10:34 AM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Friday, November 02, 2018

Packers fan finds counsel for First Amendment claim against Bears

I have written about Beckman v. Chicago Bears, a lawsuit by a Bears season-ticket holder and Packers fan who was prevented from going onto the field in Packers gear. Proceeding pro se (although with some informal guidance for a time), Beckman survived a 12(b)(6) by a very forgiving district court. It now appears Beckman has obtained counsel for the long-haul--the First Amendment Clinic at Duke and a Chicago attorney named Michel Lieber.

I think his First Amendment claim is a good one, if he can get past the state action problems. I remain surprised it took him this long to find counsel, but I am glad he found someone. This could get interesting.

Posted by Howard Wasserman on November 2, 2018 at 02:38 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (2)

Thursday, October 25, 2018

On the Georgia voting case

A district judge in the Northern District of Georgia on Wednesday preliminarily enjoined enforcement of certain regulations, specifically the "exact match" requirements for absentee ballots. Plaintiffs were three voting-rights organizations and a number of individual voters. A few thoughts:

• This is the type of case that Amanda Frost highlights as appropriate for universal* injunctions--time-sensitive and on a large scale. But this case also shows ways to extend the scope of the injunction by extending the scope of litigation. The court found that the voting-rights organizations had direct standing, given the burdens the regulations placed on them in having to notify the public of this problem. The organizations also argued associational standing on behalf of their members, although the court did not address that. The case also would have been perfect for a 23(b)(2) class and the court could have entered a classwide preliminary injunction prior to certification.

[*] Another reason "universal" works better as a term--an injunction halting enforcement of state law can be universal in extending beyond the parties, but not nationwide in any sense. And to then have nationwide and statewide injunctions would add a layer of nomenclature to the identical problem.

• It is interesting that no political party or campaign sued and attempted to assert third-party standing on behalf of voters (the typical path to broad injunctive relief against voting restrictions). This illustrates the way in which the franchise has become a partisan issue--one party wants to make voting more demanding (put aside whether the reasons are valid or not), the other party wants to make voting easier and available for more people (again, put aside whether for valid reasons or not). So a party jumping into a lawsuit, even to protect a neutral principle such as the right to vote, will appear to be acting for partisan advantage. This is especially true in Georgia, where the person making and enforcing the restrictions is a candidate for governor.

Posted by Howard Wasserman on October 25, 2018 at 11:10 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (2)

Friday, October 19, 2018

Misapplying pleading

Attorney David Lurie criticizes the lawsuit by former DNC employees and Democratic donors against the Trump Campaign for its role in disseminating the Wikileaks documents. I largely agree with his substantive First Amendment points, at least absent some stronger connection between the campaign and the Russian hackers and/or Wikileaks.

My concern is this paragraph:

But absent a basis to assert that that Trump campaign reviewed or otherwise knew of what was actually contained in the emails, the plaintiffs’ allegation that the campaign launched a scheme with the Russians to plot out the dissemination of materials to “maximize their political impact” seems to be based on speculation, not facts. And the plaintiffs’ claim that the Trump campaign knew that their private information, or that of others, was going to be disseminated seems all the more speculative.

A later paragraph allows that "if the Mueller investigation ultimately does provide evidence that the Trump campaign actually “partnered” with the Russian government to publish the stolen DNC documents, a civil lawsuit could well be the very least of the president’s problems."

Both of these statements ignore the nature of civil pleading in federal court. At least before Twiqbal turned it into something different, pleading is supposed to be based on the plaintiff's allegations that may be speculative, because the plaintiff often/usually does not and cannot know at the outset what other people or organizations knew or did. That is what discovery is for--to uncover and obtain evidence to support those allegations. To require more before the plaintiffs have had an opportunity and authority to obtain information creates an impossible situation. Moreover, it should not only be for the Mueller investigation to provide evidence--civil litigation also exists to provide evidence of misconduct, in the course of proving that civil wrongdoing occurred. Lurie's argument is consistent with Twiqbal's approach to pleading; I do not think it wrestles with that problem.

Again, I believe the complaint is defective for other reasons--it alleges less collusion between the campaign and the Russians and more "advantage gained," which is not sufficient under the First Amendment. But the speculative nature of the allegations of what happened should not be a problem at the pleading stage. And this case illustrates the problem.

Posted by Howard Wasserman on October 19, 2018 at 03:43 PM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (5)

Wednesday, October 17, 2018

SLAPP dismissal of Stormy Daniels' defamation suit

Judge Otero of the Central District of California dismissed Stormy Daniel's defamation action against President Trump under the Texas anti-SLAPP statute, holding that the President's tweets were rhetorical hyperbole and imposing attorney's fees under the statute.

Three quick thoughts.

The basic point about rhetorical hyperbole is correct as a matter of the First Amendment. I think the basic premise of this defamation suit is problematic--"A accuses X of doing something, X denies it, so A sues X for defamation for calling her a liar."

Anti-SLAPP suits are swallowing the First Amendment  as a defense to defamation, in a way I do not believe the statutes were intended to do. SLAPP stands for "strategic lawsuit against public participation." The paradigm that motivated these laws was Wal Mart bringing a defamation suit against a citizen who spoke at a city council meeting against a proposal to build a Wal Mart in town--where the lawsuit is designed to deter citizens from engaging in the public discussion. The statutes were geared towards situations with power and money imbalances (hence the fee-shifting), where the point of the suit is to make people think twice about engaging in public discussion over these matters. Not every defamation suit is a SLAPP suit. It certainty does not fit this suit--a defamation claim against the wealthy President of the United States over his obnoxious tweets, with no realistic prospect that anyone will be deterred from public participation. This seems a case that should be left to the First Amendment (especially given the court's focus on rhetorical hyperbole, a First Amendment concern).

The circuit split continues over whether SLAPP statutes apply in federal court. But this case offered several wrinkles. Texas law applied, so C.D. Cal. was applying the Texas SLAPP statute, which the Fifth Circuit has not yet determined applies in federal court. And because the case was transferred from the Southern District of New York to the Central District of California, Second Circuit precedent (which has not determined the Erie issue) applies rather than Ninth Circuit (which holds that the SLAPP laws do apply). A cert petition in the Tenth Circuit case is pending; I wonder if the Court will be more interested in the issue.

An additional wrinkle is that the district court arguably gave the game away at one point. In explaining why the SLAPP motion could be resolved without discovery, the court analogized it to a 12(b)(6). But if this is the same as a 12(b)(6), then there is a controlling federal statute that should be applied over any state law.

Posted by Howard Wasserman on October 17, 2018 at 09:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (11)

Friday, October 12, 2018

Flipping the burden on voluntary cessation

This decision from the Fifth Circuit seems wrong, at least in its analysis. The court found moot a challenge to the New Orleans Public Defender's wait list for non-capital cases, because the state legislature allocated the PD's office sufficient funds and the office eliminated the wait list. The court stated:

we are justified in treating a voluntary governmental cessation of possibly wrongful conduct with some solicitude." Absent evidence to the contrary, we are to presume public-spiritedness, says the Supreme Court. Government officials "in their sovereign capacity and in the exercise of their official duties are accorded a presumption of good faith because they are public servants, not self-interested private parties." So, "[w]ithout evidence to the contrary, we assume that formally announced changes to official governmental policy are not mere litigation posturing.

But this seems to flip the burden of persuasion on voluntary cessation, presuming the government will not resume unlawful conduct (because the government is public-spirited) absent evidence from the plaintiff to the contrary. But this seems inconsistent with SCOTUS' insistence that "the defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur."

It does not seem possible to reconcile this case with Nike, at least in terms of the stated standard. The unprincipled explanation is that the Fifth Circuit was suspicious of the entire case and so was looking for a way to dump it. The plaintiffs and the defendant (the PD Office) agreed that the wait list was constitutionally invalid and the PD enacted the policy only because the lack of legislative funding tied its hands. The court hints that the entire action is "a coordinated public-relations effort to force funding" rather than a genuine attempt to enforce constitutional rights.

Suspicion aside, this agreed-upon conclusion meant it was unlikely that the PD would reenact the challenged policy on its own. Which may be true and may justify finding the case moot. But the burden remains on the PD to show that, not on the plaintiffs to rebut the assumption.

Posted by Howard Wasserman on October 12, 2018 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Sunday, October 07, 2018

Half measure on universal injunction in sanctuary cities case

On Thursday, District Judge Orrick of the Northern District of California enjoined enforcement of DOJ regulations denying law enforcement funds to sanctuary cities. Judge Orrick previously enjoined enforcement of a presidential order denying funds to sanctuary cities. Judge Orrick made that prior injunction universal, although the Ninth Circuit narrowed it to protect only San Francisco and non-party California, concluding that the record did not support universality.

Undeterred, Judge Orrick made this injunction universal, although with several pages of analysis and justification. That analysis ultimately comes down to this--when a narrow law or regulation (or at least a federal law or regulation) is constitutionally invalid, a universal injunction is proper. And despite the rhetoric of "careful consideration," that principle is unbounded and always applicable.

The court acknowledges (and purports to share) the concerns that universality preempts percolation of issues. But then he offers two points in response: 1) the issues here are the same as in the Seventh and Third Circuits, so percolation is occurring and 2) this is a "narrow constitutional issue," so it "does not seem to be the type of situation in which allowing more cases to percolate in federal courts would be of much benefit." The second point is simply wrong. Pure and narrow legal issues benefit from percolation, from multiple sets of eyes considering and analyzing legal questions; this is the first time I have heard it suggested otherwise. The first point misses the main issue: The first court to enter a universal injunctions ends (or should end) all litigation on the issue,; this renders litigation in other courts either moot (because any party to the second action is already protected by the original universal injunction) or dangerous (because the second court issues an order conflicting with the original universal injunction, potentially imposing conflicting obligations on the defendant).

But the court hedged slightly, staying the universality pending appellate review of a narrower alternative holding about the scope of the underlying federal statute (which applied only to the parties and thus did not warrant universality). This may become a common move between district courts, who seem to like universality, and courts of appeals, who are more circumspect about scope--make the injunction universal, but stay it. Judge Leinenweber of the Northern District of Illinois made the same move.

Posted by Howard Wasserman on October 7, 2018 at 10:55 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (7)

Thursday, October 04, 2018

Slate discovers judicial departmentalism

Slate's Mark Joseph Stern contemplates the "full-blown constitutional crisis" that will arise if the Democrats regain control of the White House and Congress and attempt to resist an illegitimate Supreme Court. While finding the tools of segregationists "appalling," he suggests Democrats and progressives may find this the only option.

In reality, Stern is describing judicial departmentalism. But he fails to recognize the judgment/precedent distinction that makes this not a constitutional crisis but how the interbranch constitutional conversation should function. This conversation can produce two outcomes. One is that the judicial view will prevail because of the incentives (loss of qualified immunity, attorney's fees, repeated losses) for the executive to voluntarily comply. The other is that executive non-compliance with precedent (while following individual judgments) may cause the judiciary to change course.

Posted by Howard Wasserman on October 4, 2018 at 10:37 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Tuesday, October 02, 2018

Jurisdictionality confusion lives

I have not been writing or reading about jurisdictionality of late, so I was surprised to see that courts seem to be making the same mistakes. In this case from the Third Circuit, the district court had held that so-called statutory standing of a non-U.S. plaintiff under RICO was jurisdictional; the court of appeals affirmed, although shifting the framing to merits rather than jurisdiction. It said:

Because this case does not involve Article III standing, but rather presents an issue of statutory standing, subject matter jurisdiction is not implicated, and the parties incorrectly relied on Rule 12(b)(1) . Our precedent makes clear that "[c]ivil RICO standing is usually viewed as a 12(b)(6) question of stating an actionable claim, rather than as a 12(b)(1) question of subject matter jurisdiction." [*5] 38 Moreover, given that Rule 12(b)(6) provides a plaintiff with "significantly more protections,"39 and because we may affirm on any ground supported by the record and "there is no prejudice to appellants in our reviewing the district court's dismissal as if it were grounded on Rule 12(b)(6) ,"40 we will review this matter under Rule 12(b)(6) . Accordingly, we "consider only the allegations contained in the complaint, exhibits attached to the complaint and matters of public record."41 In evaluating whether the complaint adequately pleads the elements of standing, we accept as true all material allegations set forth in the complaint and construe those facts in favor of Plaintiffs, the nonmoving party.42

I would have thought that Morrison, which held that extraterritoriality is merits, and Lexmark, which held that statutory zone of interest is merits, would have made this obvious. But Circuit precedent distinguishes Article III standing from statutory standing and lets the merits/jurisdictionality distinction turn on that. So whether standing is Article III or statutory often becomes a point of dispute between the parties and in the case. All of which reveals why Fletcher continues to be right and the best understanding is that is all about the cause of action and who can sue whom for what--and thus should be about the merits.

Posted by Howard Wasserman on October 2, 2018 at 10:29 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Saturday, September 29, 2018

"Nationwide" Injunctions Are Really "Universal" Injunctions and they are Never Appropriate (Final)

I am pleased that the final version of my article on universal injunctions has been published in Lewis & Clark Law Review. The editing process over the summer was quite adventurous. I added four or five different updates and sets of changes to account for new developments, including resolution of the travel ban (and Justice Thomas' concurring opinion), the court of appeals decisions on scope-of-injunction in both sanctuary-city cases, and the class action in the unaccompanied-minor abortion litigation.

Posted by Howard Wasserman on September 29, 2018 at 09:00 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Thursday, September 27, 2018

Arguing about the right issue

Bloomberg reports on oral argument in Hargan v. Garza, the challenge to HHS policy surrounding pregnant unaccompanied immigrant teens seeking abortions. (Marty Lederman analyzes the arguments). The district court certified a class of all pregnant immigrant teens in HHS detention, then issued a class-wide injunction. According to the report, the plaintiffs' attorney received some pushback on the scope of that class, because it includes pregnant teens who are not seeking abortions (counsel responded that the issue also was access to abortion counseling).

The point is that the plaintiffs in this action followed the right procedures--define and redefine the class, then have the injunction match the class. Universal injunctions in individual cases allow plaintiffs to skip that step--no one would take on the difficult work of defining and certifying a class if the court is willing to leap to an injunction that protects the universe based on a complaint by one person.

Posted by Howard Wasserman on September 27, 2018 at 08:40 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Wednesday, September 26, 2018

Can you say "Speech or Debate"?

I am a Democrat. But this may be the dumbest thing I have seen. Even if a court could enjoin executive branch officials to turn over documents (questionable on political question grounds), the Speech or Debate Clause makes about as clear as anything in the Constitution that a court cannot enjoin legislative officials from taking a fundamental legislative action such as a vote. As one commentator put it, that's just not how any of this works. I also doubt Merkley has standing to sue the executive, but there is no reason to even reach that issue.

Posted by Howard Wasserman on September 26, 2018 at 04:22 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Thursday, September 13, 2018

Mark up of Injunction Authority Clarification Act

The House Judiciary Committee marked-up the Injunction Authority Clarification Act, the bill that would eliminate universal injunctions. No word on what happened, although it did start a conversation on the CivProProf Listserv.

In addition, Jeff Sessions announced litigation guidelines for DOJ attorneys in litigating the scope of injunctions. Interestingly, Sessions' statement shows he still does not understood the issue fully, because he twice rails about "single (unelected) district judges" issuing these injunctions. But the problem of universal injunctions improperly protecting non-parties has nothing to do with the number of judges on the case or the level of court. SCOTUS cannot issue (or affirm) universal injunctions any more than a district court can enter universal injunctions. SCOTUS only can affirm a particularized injunction and thereby prohibit enforcement of the challenged law against the named plaintiff, on threat of contempt; the judgment and injunction go no further. SCOTUS's decision may halt future enforcement against non-parties, but purely as a matter of binding precedent, not as a matter of the injunction itself.

Posted by Howard Wasserman on September 13, 2018 at 04:56 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Yet evading review

Mootness can be overcome* if the claim is capable of repetition yet evading review. One important limitation on this doctrine, that often gets confused or overlooked, is that the harm must be reasonably likely to recur as to this plaintiff, not generally and not as to someone else.

[*] I do not like to speak of it as an "exception" to mootness because I subscribe to Scalia's argument that a case that is C/R/E/R is simply not moot.

The Eighth Circuit held that a an action by a Democratic elector challenging Minnesota's faithless-elector law was not C/R/E/R. The court held that it did not evade review because the plaintiff waited too long to file suit, thereby shortening the time period. Rather than suing on November 8 (right after the election) or November 29 (when the results were certified), he waited until December 19, the day his vote (for Bernie Sanders) was discounted and he was removed as an elector. That left only 2 1/2 weeks to litigate, whereas a lawsuit on December 8 would have allowed almost two months for expedited litigation in both the trial court and court of appeals.

But that assumes the court would have found standing and ripeness on November 8, which is not certain. The plaintiff would have argued then that he intended to vote for Sanders and that the faithless-elector law would disqualify his vote. But courts are so inconsistent about standing that it is hard to know whether that would work. Moreover, the evading-review applies when the time is too short to litigate the issue fully, which must included SCOTUS review. So while the "district court plainly was prepared to resolve the matter with dispatch (it convened a hearing within three days and ruled on the fourth), and this court has demonstrated that it can expedite appeals in time-sensitive cases," that does not account for SCOTUS, which may have wanted a crack at a case declaring invalid a faithless-elector law. The notion that two months would have been enough time to fully litigate this issue, had the plaintiff only not sat on his rights, seems dubious.

It also is unnecessary, because the better argument is that this is not reasonably capable of repetition as to this person. The plaintiff could not show a "reasonable expectation" that he would be subject to this law again. It is doubtful the Minnesota Democratic Party will appoint him as an elector. And he cannot show that he plans to vote for someone other than the popular-vote winner so as to have the law enforced against him; that is too unknown to constitute a remediable injury at this point.

Posted by Howard Wasserman on September 13, 2018 at 07:22 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Tuesday, September 11, 2018

Injunction Authority Clarification Act of 2018

Introduced by House Judiciary Chair Bob Goodlatte (who miraculously discovered the constitutional command for particularized injunctions on January 20, 2017), the bill prohibits "an order that purports to restrain the enforcement against a non-party of any statute, regulation, order, or similar authority, unless the non-party is represented by a party acting in a representative capacity pursuant to the Federal Rules of Civil Procedure."

Goodlatte's conversion of partisan convenience aside, it is a good bill. It addresses and eliminates the real problem of non-party protection, without conflating distinct and non-problematic issues of geographic scope (by controlling venue) or source (by pushing cases to three-judge district courts). It leaves broad relief available through 23(b)(2) injunctive class actions. And it does not purport to change the Court's standard for the scope of an injunction--commensurate with the violation and no more burdensome than necessary to provide complete relief; the bill thus should continue to allow broad systemic injunctions where remedies are indivisible (e.g., legislative redistricting or religious displays) or where relief to the non-party is necessary for the plaintiff to obtain complete relief.

And on one old scholarly note--I am glad the bill does not speak of jurisdiction but of remedy, which should be a non-jurisdictional merits-related issue.

Posted by Howard Wasserman on September 11, 2018 at 07:13 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (10)

Friday, September 07, 2018

JOTWELL: Smith on Tang on the role of political power in judicial review

The new Courts Law essay comes from Fred Smith, Jr. (Emory), reviewing Aaron Tang, Rethinking Political Power in Judicial Review (Cal. L. Rev., forthcoming), arguing that courts should be less willing to invalidate laws that burden the politically powerful, a new corollary to the longstanding political-process idea that courts be more willing to invalidate laws that burden the powerless.

Posted by Howard Wasserman on September 7, 2018 at 11:47 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Thursday, September 06, 2018

Ministerial exemption as a mandatory merits defense

I have thought much about the jurisdictional status of the ministerial exemption since SCOTUS decided (correctly) in Hosanna-Tabor that the exemption was a merits-based affirmative defense and not a limit on the court's jurisdiction.

But that makes footnote 4 of this Third Circuit case a bit strange. The court held that the ministerial exemption barred a pastor's breach-of-contract claim, granting summary judgment for the Church on exemption grounds, even though the pastor was the one who moved for summary judgment and the Church never raised the defense. The court noted the following:

The ministerial exception is an affirmative defense. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171 , 195 n.4, 132 S. Ct. 694 , 181 L. Ed. 2d 650 (2012) (stating that the ministerial exception "operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar"). Although the District Court, not the Church, first raised the ministerial exception, the Church is not deemed to have waived it because the exception is rooted in constitutional limits on judicial authority. See EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 , 581-82 (6th Cir. 2018) (holding that a defendant "has not waived the ministerial-exception by failing to raise it . . . because '[t]his constitutional protection is . . . structural'" (citation omitted)); Conlon v. InterVarsity Christian Fellowship, 777 F.3d 829 , 836 (6th Cir. 2015) (explaining that Hosanna-Tabor's rationale for recognizing the ministerial exception establishes that "the Constitution does not permit private parties to waive the First Amendment 's ministerial exception" because "[t]he constitutional protection is not only a personal one; it is a structural one that categorically prohibits federal and state governments from becoming involved in religious leadership disputes"). Moreover, Lee did not argue before the District Court that the Church waived the defense. Therefore, it was appropriate for the District Court to consider the ministerial exception.

Hosanna stated that the ministerial exemption is not a jurisdictional bar. But the second sentence contradicts that by describing it as "rooted in constitutional limits on judicial authority"--which is the definition of a jurisdictional bar. Rather, we should think of the exemption as a  mandatory merits defense--although a limit on substantive merits, it has a structural basis and thus cannot be waived. As Scott Dodson has argued, mandatoriness or non-waivability is a consequence, not a defining characteristic--some defenses can be so important as to be non-waivable, even if they go to merits and have nothing to do with adjudicative jurisdiction.

Posted by Howard Wasserman on September 6, 2018 at 11:55 AM in Civil Procedure, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (7)

Tuesday, September 04, 2018

Judge Willett questions qualified immunity

Fifth Circuit Judge Don Willett, a conservative and Trump long-lister for SCOTUS, "concurred dubitante" to question qualified-immunity doctrine in this case. (H/T: Volokh Conspiracy, HTing Josh Blackman). The court found that the Texas Medical Board violated the rights of the plaintiff doctor and two patients in issuing and enforcing administrative subpoenas, but that the right was not clearly established.

Willett derides qualified immunity as a deus ex machina that smacks of "unqualified impunity" by letting officers behave badly so long as they are the first to behave badly. He emphasizes two problems with current doctrine--the inconsistency over how factually similar precedent must be to clearly establish a right and the continued tendency of courts to skip merits and decide the right is not clearly established, thereby depriving plaintiffs of precedent that can be used to clearly establish the right. Requiring a plaintiff to produce identical precedent as courts create less precedent is a catch-22, an Escherian Stairwell, and a heads-defendans-win-tails-plaintiffs-lose situation. Willett joins the growing cross-ideological chorus of judges (including Justices Thomas and Sotomayor, as well as Judge Jack Weinstein) and scholars (Will Baude and Joanna Schwartz) urging recalibration of the doctrine.

On that cross-ideological consensus, it is telling that Willett's statement comes in an ideologically unique case--a regulatory body allegedly overstepping its authority in investigating a licensed professional sounding in the the regulatory over-zealousness that libertarian judges dislike. It does not come in the more frequent (and ideologically different) qualified immunity case case arising from a police officer using excessive force against an unarmed person of color.

Posted by Howard Wasserman on September 4, 2018 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Sunday, September 02, 2018

Damnatio memoriae

This is an interesting case from the Sixth Circuit (H/T: Volokh Conspiracy). Plaintiff sued the recorders of deeds throughout Ohio, alleging that continued maintenance of deeds, plat maps, and other property documents containing (unenforceable) racially restrictive covenants violated equal protection and the FHA. The court held that the plaintiff lacked standing. He suffered no economic injury because he offered no evidence that he had been unable to purchase property. Any non-economic injury of a feeling of not belonging was not particularized to him, but undifferentiated and generalized.

The majority opinion, written by Judge Boggs, ends on the following:

In ancient Rome, the practice of damnatio memoriae, or the condemnation of memory, could be imposed on felons whose very existence, including destruction of their human remains, would literally be erased from history for the crimes they had committed. Land title documents with racially restrictive covenants that we now find offensive, morally reprehensible, and repugnant cannot be subject to damnatio memoriae, as those documents are part of our living history and witness to the evolution of our cultural norms. Mason’s feeling of being unwelcomed may be real. A feeling cannot be unfelt. But Mason’s discomfort at the expression of historical language does not create particularized injury. The language in question is purely historical and is unenforceable and irrelevant in present-day land transactions.

This prompted a two-paragraph concurrence from Judge Clay:

I concur in the judgment and, for the most part, in the opinion’s analysis, but I do not entirely agree with the majority’s suggestion that we cannot, under appropriate circumstances, modify or dispense with documents that are “part of our living history and witness to the evolution of our cultural norms.” Justice may require us to repudiate or revise elements of our “living history” if those elements—whether they be public records, flags, or statues—are shown to encourage or perpetuate discrimination or the badges and incidents of slavery; indeed, racial epithets that were once accepted as commonplace have not been preserved, and they have sometimes been stricken from our modern vernacular. We apply an even stricter standard where, as here, the government is the source of, or has ratified, language that has the purpose or effect of encouraging racial animus. We need not erase our history in order to disarm its harmful legacy, but victims of invidious discrimination who have suffered particularized injury as a result of the application of historical language should be able to seek redress, consistent with the context and the factual circumstances of their cases.

I also fear that the majority’s statement that “Mason’s discomfort at the expression of historical language does not create particularized injury” could be misunderstood or taken out of context to suggest that feelings of discomfort with racially discriminatory language could never create a cognizable injury. I do not, however, read the majority opinion as foreclosing a properly pleaded claim arising out of such racially discriminatory language, especially under circumstances that implicate governmental instrumentalities. Rather, I read the opinion to hold that the plaintiff in this action has simply failed to plead sufficient facts to demonstrate a legally cognizable injury. If and when a plaintiff shows such an injury, this Court will have to reconcile the importance of maintaining our recorded history with our vision of government speech that promotes—not hinders—a free and equal society. I do, however, respectfully concur.

 This dispute gets at an important piece of the model of my model of constitutional litigation. There is no judicially remediable constitutional harm coming from legal documents disconnected from actual or threatened executive or private enforcement. The dispute here is over real-estate documents. But the same arguments surround outmoded laws (e.g., anti-miscegination laws or prohibitions on same-sex marriage) that remain on the books but could not be successfully enforced in court. The legislature could repeal these statutes, while it would take much more to undo these sorts of legal documents. But the idea is the same--law (apart from enforcement) cannot and should not be erased by a court because of the "message" it sends from continuing to exist or having existed in the past. The court framed this as lack of standing; a good Fletcherian would call this the lack of remediable substantive constitutional rights.

Judicial departmentalism adds an extra wrinkle, because an executive could attempt to enforce such a law in the face of contrary precedent. That effort will fail once the dispute reaches a court, which is bound by precedent; it also will result in attorney's fees and potential Rule 11 sanctions. But it justifies recent efforts to get legislatures to repeal anti-miscegination laws. The arguments have focused on the symbolism of retaining these laws and the message they send. Departmentalism adds a substantive reason-- repeal avoids the spectacle of even unsuccessful efforts at enforcement. But this case confirms that the conversation must be a legislative one, not a judicial one.

There is a property question to which I do not know the answer. Could the legislature or recorder do anything about these documents or their problematic provisions? Can the government amend long-standing deeds to remove objectionable covenants? Can it issue a new, superseding deed, stripped of the objectionable covenants, controlling the property going forward?

Posted by Howard Wasserman on September 2, 2018 at 04:43 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Saturday, September 01, 2018

Avoiding dueling universal injunctions

Judge Hanen of the Southern District of Texas* on Friday refused to preliminarily enjoin DACA, where such an injunction would have created a direct conflict with injunctions enjoining the Trump Administrations rescission of DACA. Although the court held that the states have standing and were likely to succeed on the merits (because DACA violates APA and the Take Care Clause), the balance of equities weighed against the injunction, as the injunction would undo the status quo by undoing rights and reliance interests that had attached to DACA recipients since 2012. So we again avoid the clash of injunctions and impossibly conflicting obligation only by a bit of restraint from one court.**

[*] Whose universal injunction in the DAPA litigation in 2015 was the starting point for the recent trend.

[**] Note the clash comes even if the injunction issued was particularized and non-universal. The existence of one universal injunction by definition collides with all future injunctions. A particularized injunction in this case would have forced the federal government to act inconsistent with the earlier universal injunctions prohibiting rescission.

In a separate order, Hanen certified the case for interlocutory review under § 1292(b), finding the validity of DACA is a novel and unique controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation. This seems weird in two respects. First, while there is a controlling question of pure law within this order, the decision turned on the balancing of equities, an application issue that is not reviewable under § 1292(b). The court said that a Fifth Circuit declaration of DACA's validity would speed termination of the case, but it is not clear why, because that would not alter the purported balance of equities on which the district court denied relief, at least not at the preliminary injunction stage. I guess if the Fifth Circuit declares DACA invalid, the district court could summarily convert to a permanent injunction. But that assumes the Fifth Circuit takes on DACA directly and does not address the legal issue in context, saying only that DACA is likely invalid, but limiting the decision to the case's preliminary posture.

Second and in any event, certification was unnecessary to obtain review. A decision denying a preliminary injunction is immediately reviewable under § 1292(a)(1). Although the text of the statute only enumerates orders refusing to dissolve or modify an injunction as appealable, every circuit, including the Fifth, reads § (a)(1) to allow immediate review of the denial of the initial preliminary injunction. And § 1292(a)(1) appeals do not require leave of court and are not limited to controlling questions of law.

Update: Other conversations on the subject suggest that Hanen blew the procedure in another way. If he wanted to declare DACA invalid, tee-up the issue for appellate review, and avoid the chaos that would come with a preliminary injunction, he should have ordered the parties to file cross motions for summary judgment and issued a declaratory judgment. A D/J is a final judgment, appealable as such under § 1291. This stuff matters.

Posted by Howard Wasserman on September 1, 2018 at 08:18 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Tuesday, August 21, 2018

Flipping constituional litigation

Here is a move that could shake-up our expectations in constitutional litigation. A group of Kentucky filed suit in the District of the District of Columbia, challenging HHS' grant of a waiver for Kentucky to change its Medicaid program; Kentucky intervened in that action as a defendant. At the same time, Kentucky sued the D.C. plaintiffs for a declaratory judgment of the validity of the state's new Medicaid rules. The district court dismissed on standing grounds, concluding that Kentucky had not shown an injury and that any injury arose from the result in the D.C. litigation, not from any conduct of the defendants. The court did not resolve defendants' 12(b)(6) and first-to-file arguments.

This is an aggressive move, allowing a state to preempt constitutional litigation by rights-holders by running to a preferred court either before or during the rights-holders' litigation. At the very least, it forces rights-holders into a two-front war. On this logic, nothing would stop a state from the following: Prosecution of X for violating a law, with X arguing in the prosecution that the law is invalid. State runs to a different court against X, seeking a declaration that the law is constitutionally valid.

Perhaps the benefit of resolving this case on standing, rather than something discretionary such as first-to-file, is to signal that states lack standing to sue over an anticipated injury caused by someone else's lawsuit.

Posted by Howard Wasserman on August 21, 2018 at 10:59 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)